England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		20 December 2006

(see: [2007] EWHC 62 (OB) )

1. MR JUSTICE UNDERHILL: The claimant is a consultant psychiatrist. The defendant, the South West London and St George's Mental Health NHS Trust (or its predecessor), to which I will refer to as "the Trust", has employed her since 1991. She also has an academic post with the St George's Hospital Medical School, to which I will refer to as "the Medical School", which is an arm of the University of London. For her clinical work she is based at Springfield Hospital in Tooting. The Medical School is at a different site, albeit nearby. There is a question as to whether the claimant's work at the Medical School is the subject of a separate contract of employment, but I do not have to consider that for the purpose of this application.
2. Among the claimant's patients at Springfield Hospital from 2003 was John Barrett, a paranoid schizophrenic who on 1 September 2004 was responsible for the tragic killing of Denis Finnegan in Richmond Park. The decisions taken by the claimant as regards the clinical management of Mr Barrett in the period leading up to the killing have been criticised in the reports of two internal inquiries carried out by the Trust, the first chaired by Judith Chegwidden, which reported in early 2005, and the second chaired by Dr Geraldine Fitzpatrick, which reported in July 2005. The South West Thames Strategic Health Authority also set up an independent and much more elaborate inquiry chaired by Mr Robert Robinson. Its report, published on 16 November 2006, made similar criticisms of the claimant to those made in the earlier two reports.
3. In August 2005, following receipt of the Fitzpatrick report, the Trust informed the claimant that it would initiate disciplinary proceedings against her. After much correspondence and delay it was eventually confirmed that the proceedings would take the form of disciplinary proceedings under Annex B of HC90(9). A hearing is due to take place in March or April next year. Even if there is no slippage in that timetable, it is not realistic to suppose that the panel will report until a month or two after the hearing, and when it does so further time will be needed for the Trust to consider what, if any, action requires to be taken. It is unlikely, therefore, that there will be an outcome to the proceedings at least until next summer.
4. Notwithstanding the criticisms of the claimant in the Chegwidden and Fitzpatrick reports, no steps were taken to suspend her from her work at the Trust or the Medical School or otherwise to limit her activities. On the contrary, the evidence before me is that her responsibilities were to some extent increased in the period in question and that she had a positive annual appraisal, completed in January 2006: one of the appraisers was Dr Fitzpatrick, the author of the second of the two reports to which I have referred. It appears from the evidence that the Trust, under its previous Chief Executive, took a considered decision as to whether suspension was appropriate and decided against it, though there may be an issue as to the basis on which that decision was taken.
5. The position, however, changed in the light of the impending publication of the Robinson report. Mr Houghton, the Chief Executive of the Trust, called the claimant to two informal meetings on 8 and 13 November 2006. There is some dispute as to exactly what was said in these meetings, but it is common ground that there was discussion of the possibility of her being suspended following publication of the report; and it was agreed that she would, pending the outcome of the disciplinary hearing, voluntarily withdraw from clinical duties. There appears from the subsequent correspondence to have been a recognition that the details of precisely what she would cease to do remained to be sorted out, but there is no doubt that she and Mr Houghton reached a decision in principle to that extent.
6. It is the claimant's case that she understood that that agreement disposed of the possibility of suspension and that she would continue with all non-clinical work. Broadly, that work fell into two categories - (a) non-clinical work for the Trust, involving such matters as administration, supervision of junior colleagues, clinical audit and so forth; and (b) teaching and research work for the Medical School. The former would have been carried out at Springfield Hospital, and she anticipated retaining her office and continuing to come in to work and mix with her colleagues, albeit no doubt on a modified basis. The latter work would of course have continued to be carried out at the Medical School.
7. However, on 23 November 2006 the claimant attended another more formal meeting with Mr Houghton, at which he explained that he was minded to suspend her from all duties at the Trust. He heard representations from her and her MPS representative to the effect that such a suspension would be inappropriate and was unnecessary. But in the event he decided to proceed. The decision was confirmed in a letter of the same date, which I will read in full:

I am writing to confirm the content of our meeting this morning in my office, which was attended by Sandy Gillett, Director of HR and your representative, Dr Mark Dudley from the Medical Protection Society, when I suspended you from all your contractual duties with the South West London and St George's Mental Health Trust.

At the beginning of the meeting I confirmed that we had met to talk about possible suspension and that we would be using the Trust's disciplinary policy and procedure for this purpose since HC(90)9 was silent on the matter. Dr Dudley brought to our attention the fact that he and your solicitors, Radcliffe Le Brasseur, believed that we should be using HSC 2003/012. He commented that neither he nor Radcliffe Le Brasseur had seen the Trust's disciplinary procedure and that they felt the Trust was deliberately preventing you from being represented by your solicitor, Alex Leslie. As I explained later in the meeting, we believed that we were in fact using HC(90)9 at the request of your solicitors. A copy of the Trust's disciplinary procedure was handed to Dr Dudley at the start of the meeting.

I then went on to explain that since our last meeting I had read the independent inquiry report and taken further advice, including the issue of suspension. I asked you for your thoughts and comments on this. You told me, quite understandably, that you did not wish to be suspended and that although you acknowledge that it was reasonable for you not to see patients until such time as the hearing, you felt it unreasonable for a fuller suspension from duties than this. You went on to say that you were not sure what had changed from before and therefore why any further exclusion should be necessary.

I explained to you that two things had changed. Firstly, that the Trust had been in receipt of the independent report, which was long and complex. The report contained a critical examination of the events leading up to the incident on 2 September 2004 which required careful consideration; secondly, that the Trust had sought advice from its lawyers on this development. I did emphasise to you at this point that I acknowledged and appreciated your voluntary withdrawal from patient contact following our last meeting. However, it was now important to reconsider the situation.

I do know that you expressed how devastating this would be for you and I appreciate that although suspension is in fact a neutral act, it does not feel like that. Dr Dudley added that in theory suspension was non-prejudicial but it did result in the deskilling of a doctor when they were prevented from undertaking their clinical practice and therefore suspension should not go any further than necessary.

You then went on to describe that you felt both the report and the media coverage had been particularly vicious and that you felt very singled out. This was especially so after having 'stuck with it' for two and a half years. I appreciate what a difficult time this is, and has been, for you and note your comment that without your research and teaching you felt there was nothing left. You commented on how much support you had received from colleagues and the Medical School and that since your teaching and your research required no patient contact, you felt it would be reasonable to continue with these activities.

In summary, Dr Dudley confirmed that you felt it would unreasonable to exclude you from all your duties and that it's probably quite right to consider exclusion from clinical work, given the nature of the concerns in the report. He stated that the only other reason to exclude would be that your presence might prejudice any inquiries, but that this was not really a reason since there had already been an inquiry while you were still undertaking your full range of duties. He reiterated that if the Trust was minded to exclude, then this should be just your clinical patient work and not the teaching and research part of your work.

As you know, we then adjourned whilst I considered all the points you and Dr Dudley had raised with me.

When we reconvened, I said I wanted to let you know that I understood how extremely difficult this was for you and that I had tried to be as helpful as possible in our last meeting, especially regarding the media, and I wished to be as supportive as possible. However, following a great deal of reflection on the matter I said I was of the view that all the various aspects of your work are inextricably linked. Having listened to everything you and Dr Dudley have said I told you that I therefore had no alternative but to suspend you on full pay from all your duties including clinical, research and teaching activities from today.

I told you at the meeting that I would be talking to the Medical School. I can confirm that I have now spoken to Michael Farthing. He has offered that the Medical School are happy for you to continue to use the library there for your own personal use and that you may continue to use your office in the Medical School. Additionally any reasonable request for you to visit South West London and St George's Trust premises will of course be granted but I would ask that you do not enter the premises without first making contact with the Service Director or me.

I do appreciate that this is a particularly stressful time for you and I am pleased that the Medical School are able to offer you the facilities outlined above.

8. It appears from the last sentence of the antepenultimate paragraph of that letter that Mr Houghton understood that it was within his power to suspend the claimant not only from her duties at the Trust but also from her research and teaching activities. It is doubtful whether that understanding was correct because the relevant contract was not with the Trust (though, as I have said, that is not an issue which I have to decide today). In any event, as Mr Houghton said, he had discussed the matter with Professor Farthing, the Principal of the Medical School, and it is clear that they had co-ordinated the action which they could take, because on 28 November 2006 the claimant was sent a letter by Professor Farthing in the following terms:

I understand that you have been suspended from all work under the terms of your consultant contract with South West London and St George's Mental Health Trust. This letter clarifies the position over work that you may continue to carry out under the terms of your contract with St George's, University of London for so long as the suspension by the Trust is in place.

I realise that this must be a difficult time for you, and here at SGUL, we wish to maintain your access to support and advice from your senior colleagues and Head of Division. For the time being SGUL is prepared to allow you to continue your academic work to the extent of, subject to and conditional upon the following:

1. Your work must be confined to non-clinical research on the St George's, University of London (SGUL) site only. Non-clinical in this context means that it must not involve contact with patients

or any work in a clinical setting or contact with staff in a clinical setting.

2. You will continue to have access to the library and its associated research facilities at SGUL, and to your office and facilities in the Division of Mental Health.

3. We think that, on balance, it is preferable for you to refrain from teaching for the time being.

4. You should meet on a regular basis at least every two weeks with the Head of Division to keep SGUL advised of the work that you are carrying out and the progress in your relationship with the Trust.

We will regularly review the situation and the actions taken by the Trust with regard to the disciplinary proceedings against you, and will advise you if we think any change to these arrangements is appropriate.

I should be grateful if you would acknowledge receipt of this letter by signing and returning to me the enclosed copy. Please let me know if you wish to comment on these arrangements or if you would find it helpful to meet with me again.

8. It is fair to observe that, whatever may be said about the substance of both letters and in particular Mr Houghton's letter, both were couched in sympathetic terms, and both Mr Houghton and Professor Farthing plainly had an understanding of the impact of their decisions on the claimant.

10. It is the claimant's case that the Trust's decision to suspend her is a breach of contract on its part. She has issued proceedings claiming declaratory and injunctive relief. The application before me is for an interim injunction requiring the Trust, in effect, to permit her to continue to perform her non-clinical duties. The Application Notice contains a much wider range of declaratory relief; but Mr Hendy, who appears before me for the claimant, has confirmed that those matters are not being pursued on the present application.

11. I am not on this application in a position definitively to decide whether the claimant's suspension was in breach of contract. Quite apart from the formal position that this is an interim application which the parties have not agreed to treat as the trial of the action, it is clear that the evidence is not in a state which would allow me to reach a firm view on the merits, even to the extent that the issues may be issues of law. Both parties accept that there are gaps in the evidence both about the contractual position and about the circumstances in which the impugned decision came to be taken. There is, at least in principle, a realistic opportunity for the parties to have a trial of the action long before the disciplinary proceedings have run their course; and I will, if asked, direct a speedy trial as early as possible next term. In principle, therefore, I believe that I should adopt a Cyanamid approach. However, I am conscious that in practice the parties are unlikely to wish to fight a trial on the essentially ancillary question of the scope of the claimant's suspension. Accordingly I am (with, I think, some encouragement from the parties) prepared to give rather more weight to a provisional assessment of the merits than would be necessary on a pure Cyanamid basis, both as a check on the fairness of the result which I would otherwise come to and in case it is of assistance to the parties in attempting to resolve their position without a trial.

12. The first question for me is whether the claimant has shown an arguable basis for her claim that the suspension was in breach of contract. The contractual position as regards the Trust's power to suspend is unfortunately not as clear as one would wish. It is the Trust's case that in suspending the claimant Mr Houghton was indeed, as he said in his letter, exercising powers set out in its internal disciplinary policy and procedure (to which I will refer as "the disciplinary procedure") and that those powers were contractual. The disciplinary procedure in question was issued on 8 November 2006, though Mr Supperstone, who appears for the Trust, has told me on instructions that it replaced an earlier document. Paragraph 11 of the disciplinary procedure is, so far as relevant, in the following terms:

11. SUSPENSION

Suspension from duty is not, in itself, a disciplinary measure but may be appropriate when a serious allegation or complaint has been made against an employee and it is in the interests of the Trust, other staff or patients, that the employee should be removed from the normal place of work whilst the incident is investigated further. It may also be appropriate for a member of staff to be moved/transferred to another post during an investigation.

11.1 Suspension should normally only be used where:

• An employee might represent a threat or danger to themselves or others.

• There is a risk that an individual might interfere with or compromise any investigation.

• There is a concern that further misconduct or offences might occur that are of a serious nature.

• On the evidence available it is the opinion of the Designated Officer that the matter is so serious that summary dismissal could result and further enquiries are needed.

• Criminal charges have been brought against the employee and there is evidence of suspected criminal activity, which is connected with or may affect the employee's performance or suitability for continued employment.

Although there are a number of further provisions about the mechanism for suspension, I need not set them out here, though I should note that paragraph 11.8 provides that:

Whilst on suspension, the employee must not enter South West London & St George's Mental Health NHS Trust premises or contact colleagues without prior permission from the manager who authorised the suspension, or an acknowledged deputy. If access is requested for the purposes of preparing a defence, this will not be unreasonably refused.

13. It is Mr Hendy's case (a) that the disciplinary procedure is not incorporated into the claimant's contract of employment and/or (b) that in any event it is clear from its terms that it is not concerned with cases of alleged incompetence or incapacity on the part of doctors. As to (a), both parties agree that the evidence before me is incomplete; and although Mr Supperstone was able to suggest a possible route of incorporation, he was not in a position to demonstrate it unequivocally. As to (b), I have not had the opportunity for prolonged analysis of the terms of the procedure. But, as a matter of first impression, its focus does appear to be on misconduct, and the language does not seem entirely apt to cover cases of clinical incapacity. All that I wish to say at this stage is that there is a serious question as to whether, on its true construction, the procedure would apply to cases of the present kind. That is particularly so in view of the difficulty of reconciling its provisions, if it were to apply, with the Department of Health guidance to which I am about to refer.

14. If Mr Hendy is right that the disciplinary procedure relied on by Mr. Houghton confers no, or no relevant, power of suspension, then the Trust would appear to have no express contractual power of suspension. Mr. Hendy acknowledges that the Trust must nevertheless enjoy an implied power to suspend; but he submits that such a power could only be exercised, in cases of this kind, where its exercise was strictly necessary in the interests of patient safety or to protect the integrity of disciplinary proceedings or their equivalent.

15. In support of that submission, Mr Hendy draws attention to Part 2 of a document entitled "Maintaining High Professional Standards in the Modern NHS" (to which I will refer by its Department of Health document number, which is 2003/012). This contains elaborate provisions governing the restriction of the duties, or the exclusion from work, of doctors whose fitness to practise is the subject of proceedings. The term "suspension" is (deliberately) not used, but I will continue to use it here as a convenient shorthand. I will not set out the terms of 2003/012 in detail. Its broad philosophy is to combat a perceived "suspension culture" in which doctors charged with incompetence are too readily suspended pending the outcome of investigations and then remain suspended for long periods, to the detriment of their own wellbeing and professional development and to the disadvantage also of the NHS itself. The policy behind 2003/012 is that suspension should be restricted to cases where it is strictly necessary, that it should last as short a period as possible and that partial or limited suspension should always be considered where possible. I will read only paragraphs 4 to 7 and 17 to 18:

4. When serious concerns are raised about a practitioner, the employer must urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or

restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace. Where there are concerns about a doctor or dentist in training, the postgraduate dean should be involved as soon as possible.

5. Exclusion of clinical staff from the workplace is a temporary expedient. Under this framework, exclusion is a precautionary measure and not a disciplinary sanction. Exclusion from work ("suspension") should be reserved for only the most exceptional circumstances.

6. The purpose of exclusion is:

• to protect the interests of patients or other staff; and/or

• to assist the investigative process when there is a clear risk that the practitioner's presence would impede the gathering of evidence.

It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness on the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues.

7. Alternative ways to manage risks, avoiding exclusion, include:

• Medical or clinical director supervision of normal contractual clinical duties;

• Restricting the practitioner to certain forms of clinical duties;

• Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling;

• Sick leave for the investigation of specific health problems.

17. Formal exclusion of one or more clinicians must only be used where

a) there is a need to protect the interests of patients or other staff pending the outcome of a full investigation of:

• allegations of misconduct;

• concerns about serious dysfunctions in the operation of a clinical service;

• concerns about lack of capability or poor performance of sufficient [seriousness that it is warranted to protect the patients]; or

b) the presence of the practitioner in the workplace is likely to hinder the investigation.

18. Full consideration should be given to whether the practitioner could continue in or (in cases of an immediate exclusion) return to work in a limited capacity or in an alternative, possibly non-clinical role, pending the resolution of the case."

(I should say that in quoting from paragraph 17 I have supplied some words which were missing from 2003/012 but which can be found by looking at a later version of the same document: the relationship between these two versions is explained at the end of this judgment. Both this and the later version (surprisingly for documents of this importance) are littered with misprints.)

16. 2003/012 has no direct contractual effect as between the Trust and its employees. Its formal status is that its terms were agreed between the Department of Health, the NHS Confederation, the British Medical Association and the British Dental Association; and that by formal directions issued by the Secretary of State under his statutory powers - the Restriction of Practice and Exclusion of Work Directions 2003 ('the 2003 Directions') - all NHS bodies are obliged to 'implement' its provisions. That obligation does not carry with it the power unilaterally to vary existing contracts of employment. However, Mr Hendy submits that 2003/012 provides the best guide to the limits of the implied right to suspend which he accepts that the Trust must enjoy; or (to put the same point another way) that the so-called duty of trust and confidence has the effect that any implied power to suspend must be exercised in a way no less favourable to doctors than the requirements of 2003/012. In support of his submission that a general power to suspend may be modified by the effect of the implied duty of trust and confidence, he referred me to the decision of the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703.

17. 2003/012 replaces a previous document entitled "Disciplinary Procedures for Hospital and Community Medical and Hospital Dental Staff", issued by the NHS Executive under number HSG(94)49, which (despite the generality of its title) is concerned only with guidance on suspension procedures. HSG(94)49 is not, on the face of it, relevant in the present case since, to the extent that any NHS-wide policy can be relied on by the claimant, it is hard to see why reference should be made to the superseded rather than the current policy. However, for a particular reason which I shall need to mention shortly, Mr Houghton has said in his witness statement that although he did not have regard to 2003/012 he did take into account the provisions of HSG(94)49. That being so, it is worth observing that although its provisions are far less elaborate than those of 2003/012, their broad thrust is the same, namely to ensure that the exercise of powers of suspension occurs as sparingly as possible and that alternatives to full suspension are always considered. I should read paragraph 3, which is in the following terms:

Suspension should be seen as a neutral act, rather than a disciplinary sanction. It is intended to protect the interests of patients, other staff, or the practitioner and/or to assist the investigative process. It is a measure which has potentially serious consequences in both human and financial terms, especially where the suspension proves to be a lengthy one. It is therefore in the interests of all concerned to ensure that alternatives to suspension, for example the practitioner continuing to work on limited or alternative duties where practicable, are carefully considered. When suspension is appropriate, it is essential that adequate resources are committed to ensure the speedy resolution of the case.

18. In my view, having regard to all this material, it is at least highly arguable that the Trust was contractually obliged, when considering the claimant's suspension, to adopt an approach no less favourable to her than that contained in 2003/012. I consider it at least arguable that the 2006 disciplinary procedure either is not incorporated in the claimant's contract of employment at all or, if it is, that it has no application in the circumstances of the present case. If that is right, then I see great force in Mr Hendy's submission that 2003/012 should as a matter of contract, albeit by the indirect route which he has suggested, govern the Trust's approach. In any event, even if the 2006 procedure is incorporated and does apply, I consider it arguable that the discretion contained in paragraph 11 is, by reason of the operation of the duty of trust and confidence, to be exercised only in the circumstances contemplated by 2003/012.

19. Having reached that point, the next question is whether it is arguable that the Trust failed to apply the approach required by 2003/012. In my view it is. Mr Houghton's letter of 23 November 2006, which I have set out above, does not state explicitly why he felt it necessary to make the suspension decision. He says only that the receipt of the Robinson report was an important change; but he does not say what it was about the report that justified suspension. His witness statements for the purpose of the present application, which are the only evidence filed on behalf of the Trust, are hardly more specific. His first witness statement says simply:

The decision to suspend Dr Mezey was based on the critical findings in the report as to Dr Mezey's seriously flawed medical judgement in relation to a series of clinical decisions she made with regard to the treatment of Mr Barrett.

His second witness statement does not deal with the point at all. Mr Supperstone submits, however, that what Mr Houghton is plainly to be understood as saying is that the criticism in the Robinson report casts sufficient doubt on Dr Mezey's competence to justify the conclusion that if she continued to treat patients there was a risk of harm to them or to others. I agree that that is probably what Mr Houghton should be taken to be saying, though the fact that he does not spell it out may indicate some unease (conscious or unconscious) about whether it is really a sustainable conclusion, particularly in circumstances where the claimant had been allowed to practise without restriction for the past two years notwithstanding the essentially similar criticisms made of her in the Chegwidden and Fitzpatrick reports.

20. But the question whether or not the claimant could reasonably be thought to be a risk to patients is not the question before me. She had already voluntarily agreed not to engage in clinical work until the conclusion of the disciplinary proceedings. The real question is why Mr Houghton decided to suspend her from all her remaining non-clinical activities. As to that, the claimant's witness statement says:

I ought to make clear that I am willing to have my duties with the NHS Trust restricted so that I am not personally involved in seeing and treating NHS patients. I would like to be able to use my office at the NHS Trust, attend audit meetings, attend meetings at which NHS Trust colleagues discuss the care of their patients so that I do not become isolated from the actual care of patients, and to continue with my role as organiser of the academic programme for the service. I do not think that those activities pose any risk to the care of patients, the NHS Trust or me. I also wish to be free, so far as the NHS Trust is concerned, to continue my research where that does not involve me in direct or personal care and treatment of patients. Finally, I would like to continue with my administrative duties, including those associated with training.

Mr Houghton's witness statement does not address that evidence in any way. In particular, he does not take issue with the claimant's statement that she does not believe that the activities in question pose any risk to the care of patients, the NHS Trust or herself. It is true that in his letter of 23 November he said "all the various aspects of your work are inextricably linked"; but that is far from self-evidently right, and it is not repeated, let alone amplified or clarified, in his evidence.

21. Mr Supperstone reminded me that the Trust had had only a limited time to prepare for this hearing and invited me to take an indulgent view of the deficiencies in Mr Houghton's evidence to which I have referred. That point does not impress me. Mr Houghton, if he gave the decision the care that he professes in his letter of 23 November, will have known what his reasons for that decision were. A letter before action was sent on 29 November 2006. The claimant's witness statement in support of the application was served on 5 December. Mr. Houghton's witness statement was not served until 15 December. He had, in my judgment, sufficient opportunity to explain himself more fully.

22. In the absence of such an explanation, I must regard it as seriously arguable that Mr Houghton did not give proper weight to the importance of limiting the extent of any suspension to what was strictly necessary and confining it to a restriction of clinical duties. I draw attention in particular to the terms of paragraphs 7 and 18 of 2003/012, which expressly contemplate practitioners continuing to work in non-clinical roles.

23. Mr Hendy hinted that what may in fact have affected Mr Houghton's thinking was the need to be seen to be taking some decisive action in response to the Robinson report in order to maintain public confidence. He points out that the claimant says that in one of their two earlier meetings Mr Houghton referred to the need to maintain public confidence. It would be quite wrong for me to make any firm finding that that was indeed Mr Houghton's motivation. But I would observe that if it was, there is a strong argument that that need could proportionately have been achieved by an announcement that Dr Mezey had voluntarily withdrawn from clinical duties.

24. There may in fact be some excuse for Mr Houghton not at the time of his decision referring explicitly to 2003/012, because the Trust's solicitors had by letter dated 21 November 2006 asked the claimant's solicitors whether they were contending that 2003/012 applied to the claimant's case and had been told that they were not. It seems to have been for that reason that, as previously mentioned, Mr Houghton said that he had regard to the predecessor document, HSG(94)49. But, even if (which may be debatable) that is a sufficient answer to the Trust's failure to have regard to 2003/012, even the earlier guidance, in the paragraph which I have quoted, makes it clear that partial suspension ("the practitioner continuing to work on limited or alternative duties") should be "carefully considered".

25. I am not of course at this stage deciding that the decision to suspend the claimant from all her duties was a breach of contract, but I should make it clear that I consider it not only arguable but strongly arguable that it was. It may be that fuller evidence will in due course reveal a cogent justification for the extreme step of suspending the claimant not only from her clinical work but also from all activities at the Trust and, by its knock-on effect, from her teaching activities at the Medical School as well. However, unless such a justification emerges, it seems to me that the present case presents a good example of the kind of situation where the philosophy both of HSG(94)49 and of 2003/012 rightly militates against a blanket suspension. It is a serious matter for a doctor against whom no finding of unfitness to practise has been made to be cut off from all contact with colleagues and from all useful work for a period of many months. Irrespective of the contractual niceties, I should be surprised if the evidence at any trial was that such a result was within the Trust's powers, absent (I must repeat) some further cogent justification being demonstrated.

26. That leaves the question of the balance of damage. Much of what I have said about the inadequacy of the Trust's evidence applies equally here. There is nothing in that evidence to show that any harm would be done to the Trust by the claimant being permitted to carry out her non-clinical duties pending the outcome of the disciplinary proceedings. It is of course significant in this regard that the claimant has been working without problems for the Trust for the last two years: see para. 4 above. There is, by contrast, clear evidence of prejudice to the claimant which is not compensatable in money terms. Being excluded from the hospital and from her office, from the opportunity to do useful work there and to interact socially and professionally with her colleagues, is both personally upsetting and likely to prejudice her professionally. The evidence also suggests that the restriction on her teaching imposed by the Medical School, with which she is unhappy, may have been influenced by the course taken by the Trust, and thus that a relaxation of the Trust's suspension may prompt a rethink by the Medical School.

27. In the result, I propose to grant an injunction prohibiting the Trust from implementing its decision of 23 November 2006, so that the claimant can continue to perform her non-clinical duties at the Trust. The precise form of order may require further consideration and I will hear counsel on it following this judgment. I will direct that the order will not in any event take immediate effect, so that the parties can have time to adjust in the light of my decision. I should also mention (though this has not featured in submissions) that the claimant should, as a matter of principle, be required to give an undertaking in damages - although it is hard to see what the substantive effect of such an undertaking would be.

28. Mr Supperstone submitted that an order of this kind would be unprecedented. That may be literally true, but I cannot see that it raises any question of principle different from that raised by what are now the many cases in which the court has been prepared to restrain dismissals in breach of contractual procedures. I do, however, emphasise three points. First, the effect of my order is not to require that the claimant be allowed to continue with clinical duties. She has already made it clear she does not intend to do so. Very different issues would have arisen if I had been asked to make such an order. Secondly, there is no question here of a breakdown of working relationships. On the contrary, the claimant has been working well with her colleagues at the Trust for the last two years. Thirdly, I recognise that the discretion to suspend is vested in the Trust and is, in the circumstances, a broad discretion that may require a balancing of a number of difficult factors. If Mr Houghton had put before me cogent reasons why the blanket suspension which he imposed by his letter of 23 November was justified, I would have been very slow to second-guess those reasons. However, the fact is, as I have sought to demonstrate, that he did not do so.

29. There is one supplemental matter with which I have been asked to deal. The relationship between the two versions of 'Maintaining High Professional Standards in the Modern NHS' to which I have referred above is not at once apparent; and, having incurred some labour in teasing it out, Mr Hendy when I handed down this judgment asked me to include a passage explaining it, in case it is of value to other practitioners. I am happy to do so, although I should warn that the exigencies of an urgent interlocutory hearing mean that I and counsel, on whose researches I depend, may have missed something. Subject to that, the position seems to be as follows.

(1). There has for many years been dissatisfaction with the operation of the disciplinary procedures for (broadly) hospital doctors and dentists enshrined in HC(90)9 and the ancillary suspension procedures in HSG 94(49). A new proposed 'framework' was agreed between the bodies identified in para. 16 above, with input also from the National Clinical Assessment Authority. The framework was in various 'parts' and was introduced in two stages.

(2). The first stage of the new framework was embodied in Health Service Circular 2003/012, which contains an 'Introduction and Explanatory Note' setting out the philosophy behind the framework, together with Parts 1 and 2, respectively entitled 'Action when a concern arises' and 'Restriction of practice and exclusion of practitioners from work': these are essentially concerned with procedures preliminary or ancillary to the disciplinary procedures themselves, and they cover what was previously known as 'suspension', though (as noted above) use of that term is avoided. As noted in para. 16 above, it was made the subject of formal Directions from the Secretary of State – the 2003 Directions.

(3). The second stage of the framework was published in a further document, which – unhelpfully – bears the identical title to the first document and has no circular number or other feature to distinguish it. It is also undated; but it was made the subject of directions from the Secretary of State dated 11^th February 2005 - the Directions on Disciplinary Procedures 2005 ('the 2005 Directions') - and so was presumably published at or shortly before that date: I will refer to it as 'the 2005 document'. The 2005 document contains the remaining three parts – i.e. Parts 3 to 5 – of the new framework, headed respectively 'Conduct hearings and disciplinary matters', 'Issues of capability' and 'Concerns about a practitioner's health'. It also contains parts of the original 'Introduction and Explanatory Note' from 2003/012, and the whole of Parts 1 and 2, though there appear to be at least some minor changes of wording and – as noted at para. 15 above – at least one serious accidental omission from Part 2 is (silently) corrected.

(4). The intention presumably is that in practice the 2005 document will supersede 2003/012, since it contains all five Parts of the new framework. Nevertheless, somewhat inconveniently, 2003/012 and the 2005 document remain formally the subject of distinct Directions, the 2003 Directions covering Parts 1 and 2 and the 2005 Directions covering Parts 3 to 5 (this is made clear by footnote 3 to the 2005 Directions).

(5). The Directions in both cases require Trusts to 'implement' the respective parts of the framework by specified dates – in the case of 2003/012 by 1^st April 2004 and in the case of the 2005 document by 1^st June 2005 – and the previously applicable circulars (i.e. HSG (94)99 and HC (90)9) are withdrawn with effect from those dates. However, as noted in para. 16, the Trusts are not given any power unilaterally to alter existing contractual arrangements: this gave rise to one of the issues considered in Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2006] IRLR 100.